National Blog

This Week in Congress

The House is in session Monday through Friday. The main item on their agenda is S. 139, legislation reauthorizing Section 702 of the FISA Act, otherwise known as the “crown jewel” of the surveillance state.

While S. 139 makes some improvements to the current system, on balance it does not do anything meaningful to limit the use of Section 702 for unconstitutional surveillance. Marcy Wheeler explains how the bill not only preserves backdoor searches, but also effectively flips the fourth amendment on its head:

ADDS A STRIPPED DOWN VERSION OF THE MEANINGLESS HJC WARRANT REQUIREMENT

The bill adds a warrant requirement before accessing the communications identified by metadata for use in a fully predicated criminal investigation (this is basically the existing HPSCI optional warrant, made obligatory for a narrow use), one that is as meaningless as the HJC warrant requirement. The caveats make it clear how meaningless it is, particularly clause iii that permits FBI to run queries even before they’ve opened an assessment.

(F) RULE OF CONSTRUCTION.—Nothing in this paragraph may be construed as—

(i) limiting the authority of the Federal Bureau of Investigation to conduct lawful queries of information acquired under subsection (a);

(ii) limiting the authority of the Federal Bureau of Investigation to review, without a court order, the results of any query of information acquired under subsection (a) that was reasonably designed to find and extract foreign intelligence information, regardless of whether such foreign intelligence information could also be considered evidence of a crime; or

(iii) prohibiting or otherwise limiting the ability of the Federal Bureau of Investigation to access the results of queries conducted when evaluating whether to open an assessment or predicated investigation relating to the national security of the United States.

In other words, back door searches will still function as Google for FBI (perhaps even at a more basic level), except for the one time a year when an Agent discovers communications she wants when she’s already deep into an a criminal investigation and can’t justify accessing the information on national security (including recruiting someone as an informant) grounds.

Or to put it more bluntly: FBI can access information more easily if they have zero suspicion than if they have probable cause, effectively flipping the Fourth Amendment on its head.

Marcy also looks at how the bill deals with “about” collections :

ADOPTS THE HJC DEFINITION OF ABOUT COLLECTION

The HPSCI bill replaces its old definition of about collection,

(5) may not intentionally acquire communications that contain a reference to, but are not to or from, a facility, place, premises, or property at which an acquisition authorized under subsection (a) is directed or conducted, except as provided under section 203(b) of the FISA Amendments Reauthorization Act of 2017;

With the HJC one.

(5) may not intentionally acquire communications that contain a reference to, but are not to or from, a target of an acquisition authorized under subsection (a), except as provided under section 103(b) of the FISA Amendments Reauthorization Act of 2017; and

In reality, the government is collecting on facilities in any case (though the HJC definition is the one Rosemary Collyer adopted in last year’s reauthorization).

That said, the bill adopts the HPSCI method of restarting about collections, which (IMO) will result in an emergency reauthorization, followed by Congress failing to use its veto power to turn about back off again.

Michigan Representative Justin Amash is offering a version of the USA Rights Act to the bill. Texas Representative Ted Poe along with California Representative Zoe Lofgren are offering a narrow amendment that just deals with the backdoor search issues. Representative Phil Roe of Tennessee is offering an amendment to impose a warrant requirement for Section 702.

The House Rules Committee meets today to decide what Amendments will be made and in what order.

The House will also consider a number of bills under suspension, including:

H.R. 4577– establishes a working group to “…. determine ways to develop a domestic canine breeding network to produce high quality explosives detection canines, and for other purposes."

H.R. 1486– Creates a new grant program for non-profits at risk of terrorist attacks.